Page:BNSF Railway Company v. Michael D. Loos.pdf/20

Rh company really moved by a selfless desire to protect a federal program from “a long-term risk of insolvency”? See ante, at 5, n. 2. Several amici offer a more prosaic possibility. Under the rule BNSF seeks and wins today, RRTA taxes will be due on (but only on) the portion of a FELA settlement or judgment designated as lost wages. Taxes will not attach to other amounts attributed to, say, pain and suffering or medical costs. At trial, of course, a plaintiff ’s damages are what they are, and often juries will attribute a significant portion of damages to lost wages. But with the help of the asymmetric tax treatment they secure today, railroads like BSNF can now sweeten their settlement offers while offering less money. Forgo trial and accept a lower settlement, they will tell injured workers, and in return we will designate a small fraction (maybe even none) of the payments as taxable lost wages. In this way, the Court’s decision today may do precisely nothing to increase the government’s tax collections or protect the solvency of any federal program. Instead, it may only mean that employees will pay a tax for going to trial–and railroads will succeed in buying cheaper settlements in the future at the bargain basement price of a few thousand dollars in excise taxes in one case today. See Brief for American Association for Justice as Amicus Curiae 34–36; Brief for SMART et al. as Amici Curiae 5–7.

Whatever the reason for BNSF’s gambit, the problems with it start for me at the first step of the statutory interpretation analysis–with the text of the law itself. The RRTA taxes an employee’s “compensation,” which it defines as “money remuneration… for services rendered as an employee to one or more employers.” 26 U. S. C. §3231(e)(1). A “service” refers to “duty or labor… by one person… bound to submit his will to the direction and control of [another].” Black’s Law Dictionary 1607 (3d ed. 1933). And “remuneration” means “a quid pro quo,” “recompense” or “reward” for such services. Id., at 1528. So